"The Strength of the Internet is Chaos":

The Communications Decency Act in Context

Note: This is an expanded version of a speech delivered by Baca on LegendMud on July 16, 1996.

I. Orienting Remarks

People often mistakenly assume that they possess a right to free speech;
indeed, the First Amendment
literally reads "Congress shall make no law . . . abridging the freedom of
speech," which seems plain enough on its face. But if you happen to be a
lawyer, a politician, or a judge--faced with all the practical disasters that
might result in a world in which speech really could not be regulated--it
quickly becomes more proper to say that any First Amendment right is actually
a right not to have the government interfere with your speech in some
circumstances. Notice that has two parts, "the government" and "some
circumstances." In other words, the Constitution protects us only against
government acts; if your service provider, a private organization, decides it
doesn't like you or what you are saying, it is under no obligation to respect
your right to "free speech." Similarly, there are a wide range of areas where
the government may tread upon what a purely literal reading of the
Constitution might call free speech rights, for instance in the areas of
obscenity or slander. In practice, then, free speech is a "negative" right,
one the government cannot interfere with in some circumstances, not a
"positive" or "affirmative" right that it must enable or an absolute one that
it must invariably honor.

I think I can explain this best by an analogy to property rights. Your right
to hold property does not mean the government has to give you some if you
have none, or let you do anything you want with your property (zoning
regulations can forbid you from doing what you would really like to with your
property), or even keep your property (since the government can take your
property from you for public use by paying fair market value, even if you do
not wish to sell it).

Similarly, free speech does not mean that the
government must give you access to a printing press or TV stations if you
cannot supply them yourself; it does not mean that you can say anything you
want any place you want any time you want (the government can enforce the
equivalent of "zoning" regulations that, for instance, require you to get a
parade permit, or prohibit you from using sound trucks above a certain
decibel level, or forbid you to engage in campaigning within 100 feet of a
polling place); and it can forbid some speech outright and punish it--the most
obvious examples are child pornography, obscenity, slander/libel, and
incitement to riot, all of which can be prohibited.

I begin in this way because, if we realize that free speech is an already
limited right--as all rights are limited, not absolute-- we will much more
easily be able to understand what the drafters of the Communications
Decency Act (CDA) were trying to accomplish, what the recent Federal
District Court opinion enjoining its enforcement was trying to say, and what
all this suggests about the future of the CDA.

II. The CDA

The CDA is a subsection of a much larger federal law, the Telecommunications Act of 1996,
signed into law on February 7th, 1996. It states, in relevant part, that
whoever "knowingly makes, creates, or solicits, and initiates the
transmission of any comment, request, suggestion, proposal, image, or other
communication which is obscene or indecent, knowing that the recipient of the
communication is under 18 years of age, regardless of whether the maker of
such communication placed the call or initiated the communication" is subject
to a fine up to $250,000 or up to two years in prison. A parallel provision,
directed specifically to "interactive computer service" transmissions,
prohibits material that is "patently offensive," by "contemporary community
standards," in its reference to "sexual or excretory activities or organs."
In other words, the law appears to have prohibited "indecent" material on the
Internet.

The American Civil Liberties Union, the Center for Democracy and Technology, and the American Library Association (among others)
brought immediate challenges to the CDA, and the challenges were later
consolidated into a single case, heard in the U.S. District Court for the
Eastern District of Pennsylvania. I want to talk first about the nature of
the challenges and where the CDA fits into First Amendment law in order to
better explain the District Court's opinion upholding that challenge.

First of all, the real sticking point in the CDA was the use of the word
"indecent," which at first blush appears broad and not clearly defined, as
opposed to, say, "obscene," which is clearly defined by law.

The CDA appears to define "indecent" as something that "depicts or describes,
in terms patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs." Obscenity, on the other hand, is
defined as something that "appeals to the prurient interest" (that is, it is
sexually titillating) and is "patently offensive," both as judged by community
standards, and as something that also lacks "serious value" (artistic,
scientific, etc.) as judged by a national standard. Clearly the "indecent"
and "patently offensive" standards in the CDA reach more than material that
is merely sexually arousing, and the CDA appears to include no exception for
material that possesses "serious value."

Of course, obscene materials were already prohibited on the Internet before
the CDA, so a law that merely restated that ban would have been
redundant--not that Congress is never redundant when it can thereby bargain
for points at the polls. The fear among many people, then, was that
"indecent" would reach a vastly larger amount of material than "obscene" and
would seriously impede free speech.

But if we think back to the orienting remarks, we'll recall that free speech
is never entirely free; it's always subject to some regulation. The
"indecent" standard that Congress and the President seemed to be trying to
apply runs parallel to the "indecent" standard applied by the FCC to radio
and television broadcasts. As anyone who watches TV or listens to the radio
knows, certain "foul" language and, on TV, nudity, never appear. Now "dirty"
words and nudity are not obscene--we have, after all, R-rated movies that show
these things completely within the bounds of the law of obscenity. The
restrictions on radio and television broadcasts of less than obscene speech,
what we might call indecent speech, the Supreme Court held permissible in a
case called FCC v. Pacifica Foundation, which dealt with the famous
George Carlin "dirty words" monologue. In Pacifica, a father
was driving down the road with his young son, tuning through the radio dial,
and was barraged by Carlin's monologue. The Court held that because of the
nature of TV and radio--because merely tuning the channels could subject one
to words and images without ability to screen them out through prior
warnings, and because of the risk to children, even those too young to read
who could manipulate TV and radio--merely "indecent" speech could be
regulated in this medium. In short, then, in drafting the CDA, Congress
seems to have been thinking of the Internet as like radio and television,
able to bombard people unexpectedly with indecent material.

Thus, as offensive as some of us might find the CDA itself, it is not
necessarily coming entirely from left field in its construction. The
government has broad powers to regulate certain sorts of speech in certain
contexts. Let's look now at what the first court to review the CDA thought
of it.

III. The Federal Court Opinion

On June 11, 1996, a three-judge panel of the U.S. District Court for the
Eastern District of Pennsylvania issued a preliminary injunction banning the
enforcement of the CDA, finding it "unconstitutional on its face," that is,
plainly unconstitutional. The standard for review in such cases of direct
restraint on speech is that the legislation will only be upheld if it is
justified by a "compelling government interest" and is "narrowly tailored"
(or uses the "least restrictive means") to achieve that interest. In short,
and contrary to popular opinion, the government could regulate
even non-obscene speech on the Internet if it could satisfy this standard.
The District Court held that, in this case, the government had not.

The June ruling, in any event, was not a final disposition but a ruling that,
based upon the information gathered, the plaintiffs had a persuasive argument
and would suffer harm if the CDA were allowed to go into effect. The
preliminary injunction issued thus prohibits the enforcement of the CDA while
the decision is being appealed; on July 1st, the Attorney General's office
appealed the lower court's order to the Supreme Court. Some more remarks in
this area are in my conclusion.

A huge portion of the opinion is taken up by findings of fact, which explain
to any reader not acquainted with the Internet its history and general
operations. The findings of fact, agreed to by both sides, will be treated
with deference by the Supreme Court when it reviews the decision. That is,
although the Supremes will review the constitutional arguments afresh, they
will treat the facts as givens.

The rest of the opinion, to which the Supreme Court, as the nation's highest
court and final arbiter of constitutional law, need give no deference,
consisted of opinions by each of the three judges on the panel. As some of
you know, the opinions are quite long, so I'll just summarize the key points
of the opinions taken together.

First and foremost, the court distinguished the Internet and the WWW from
radio and television broadcasts, observing that much more in the way of
"affirmative steps" would be necessary for the user to arrive at potentially
offensive materials than in the radio/TV environment. This is an important
differentiation, since the Supreme Court has clearly held that radio and
television broadcasts can be regulated to ban indecent speech, speech that is
not obscene.

Second, the court suggested that there is no effective way to check the age
and identity of users in many circumstances (like in MUDs and online chat
rooms) and that imposing methods like credit-card verification for access to
Internet sites would be too costly for most non-profit sites. In other
words, even where controlling access is technologically possible, implementing
the CDA's controls would mean that the vast majority of people could not
afford to maintain, for instance, WWW sites. The import of this argument is
directed toward the "least restrictive means" part of the court's test; here,
even though protecting minors from harmful "indecent" material might be a
"compelling government interest," the court found that the CDA would prohibit
too much speech. By definition, then, the court implies that a practical
less restrictive means might be justifiable.

Third, the Court argued that the "patently offensive" standard made the CDA
too vague to be enforced. Under readings of the Fifth Amendment right to Due
Process, citizens are entitled to laws plain enough on their face that we can
conform our behavior accordingly. This court suggested that the "patently
offensive" standard was vague enough to leave people confused about what
could or could not be transmitted on the Internet. In other words, a more
plainly articulated standard would not necessarily run afoul of the
Constitution.

Fourth, finally, and perhaps most interesting, the court argued that the
Internet is a unique forum for democracy. The Supreme Court has long held
that there is a correlation between free speech and the success of democracy,
that our society is healthiest when we can hammer out our disputes in the
"marketplace of ideas." The court here held that the Internet, because it
provides an inexpensive forum where everyone can speak, is the democratic
forum par excellence, more democratic than radio or television, which require
expensive broadcast transmitters, and more democratic even than print media,
which require extensive and expensive distribution networks even if you can
afford to print your work at home. Judge Dalzell explained, "It is no
exaggeration to conclude that the Internet has achieved, and continues to
achieve, the most participatory marketplace of mass speech that this
country--and indeed the world--has yet seen." He continues, "If 'the First
Amendment erects a virtually insurmountable barrier between government and
the print media,' even though the print medium fails to achieve the hoped-for
diversity in the marketplace of ideas, then that 'insurmountable barrier'
must also exist for a medium that succeeds in achieving that diversity." In
a wonderful way, the court seems to suggest that the Internet may be worthy
of a level of First Amendment protection beyond that given to
any media before because it makes possible a degree of speech never before
possible.

IV. The Future

So where does this leave us?

First, as I said earlier, the District Court's opinion is not a final
disposition, merely the granting of a preliminary injunction to enforcement
of the CDA.

The Attorney General's Office has already decided to appeal the ruling,
and--while the Supreme Court usually has the privilege of granting or denying
review--in this case the Supreme Court must hear the appeal. The Supremes
have ended their current term, and they will not begin hearing new cases until
they re-convene in the beginning of October. After that, we can expect them
to actually hear the case relatively quickly, probably before Christmas, and
they'll deliver a verdict sometime before the recess next summer--lots of
decisions are handed down in May and June.

My impression is that there is room for the Supreme Court to go either way on
this one. The District Court's opinion, however enthusiastic, does not bind
the Supremes, and they may even feel compelled to take a more cautious
approach just because the District Court was so plainly enthusiastic about
the Internet.

Moreover, the District Court did not focus very directly upon some of the
language of the CDA, which punishes only the "knowing" distribution of
indecent materials to minors. "Knowing" is a difficult standard to satisfy,
and, considering that there is no effective means to certainly block access
of minors to indecent material, the Supremes may read the "knowing"
requirement as satisfying the "least restrictive" requirement.

And, ultimately, even if the Supremes agree that the CDA is unconstitutional,
there is already rumbling in Congress suggesting that Congress will try again
with another version of the law--one less restrictive, or with a clearer
standard, or making use of evolving Net-censor programs--that perhaps would
pass Constitutional muster. Even this very positive District Court opinion
made plain that it did not mean to suggest that "any and all regulation of
protected speech on the Internet" was impermissible. In short, we could
justifiably expect literally years of legal machinations, as we have had in
the cable television industry, to determine just what the government can and
cannot prohibit and how it can do it. The victory in the District Court,
even a victory in the Supreme Court, will not send packing the people who
want communications on the Internet to be more closely regulated.

If there is a true light at the end of the tunnel to all this, it is not, I
think, at the end of the tunnel at all but in the tunnel itself--what light
we can hope for we have already. Judge Dalzell, in his conclusion, argued
that "the strength of the Internet is chaos," suggesting that the discord of
voices in the ultimate marketplace of ideas is itself what makes the Internet
worthwhile. I would go even further and suggest that the survival of speech
on the Internet is chaos. That is, the government has historically had some
success with regulating speech when it could do so, for instance, by
controlling the scattering of TV and radio stations, by keeping an eye on
major publications, by requiring permits to parade in public parks. Those
sorts of restrictions and the means the government has to enforce them are
unlikely to function successfully on the Internet. A war against "indecency"
on the Internet is likely to be as futile as the "war on drugs"--there are
just too many vectors of speech, too many people able to speak from too many
spots. To rephrase an old cliche, the government can watch some of the people
all the time, or all of the people some of the time, but it cannot watch all
the people all the time, and it could afford to prosecute only a few of those
anyway. While this, I know, is cold comfort to anyone actually prosecuted
under such a law--were one to be upheld--and while prosecutions are likely to
discourage speech among many of the others not prosecuted (First Amendment
scholars call this "chilling" free speech), nonetheless the sheer magnitude
of the challenge of regulating "indecent" speech on the Internet is likely to
prove an impossible task for the U.S. judicial system.

Thus, in the context of the Internet itself, even successful speech regulation
may prove ultimately futile, as did trying to forestall civil rights for
African Americans in the 1960s by arresting a fraction of the protestors. My
belief is that anything Congress does or the Supreme Court decides is
unlikely to stifle the "chaos"--to try to is to war as Great CuChulainn
did, against the invulnerable tide.